Starting Over on the Individual Mandate

March 26, 2012

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Note: This article is also posted at PPACAction.com.

At stake in today’s arguments is whether the Supreme Court can hear the challenge to the individual mandate now, or whether a challenge has to wait until the penalty’s for not maintaining health insurance are actually assessed.

If the Supreme Court does put off a decision, what would that mean in practice? Under the PPACA, the individual mandate does not go into effect until 2014, which means that the earliest a legal challenge could be brought would be in 2015 when the tax penalties for 2014 are actually assessed. Any challenges would then have to wind their way through the lower courts again, and would probably not get back to the Supreme Court until 2017 or 2018, after not only this fall’s presidential election but also the one after that.

Delay could create a variety of legal and political headaches. For example, if a Republican candidate wins the presidency in November, they will have to decide whether to continue to defend the law in the courts. Typically the federal government will defend the constitutionality of all federal laws regardless of whether the Administration in question supports them. The Obama Administration, however, has declined to defend the federal Defense of Marriage Act in the courts, which could set a precedent for how a Republican administration would respond to the individual mandate. On the other hand, if the federal government does decline to defend the law, that could make it difficult for the Supreme Court to resolve the issue, and could leave a legal mishmash with the law being invalidated by some courts and upheld in others.

Waiting until 2015 could also throw a wrench into state governments’ plans regarding the PPACA’s health insurance exchanges, which under the law go into effect in 2014. Most states have been putting off making a decision on the exchanges to see what the Supreme Court does with the law. Starting over would remove that as an option, and would force states to guess what the Court might eventually do.

Given all this, it’s not surprising that both sides in the case are arguing that the Supreme Court can decide the constitutionality of the individual mandate during this term.